Much attention has been placed on efforts at the federal level to control the spread of COVID-19 in the country’s workplaces, including President Joe Biden’s announcement in early September that workplaces of more than 100 workers would have to require either vaccination or weekly testing.
While certainly important for employment attorneys and business owners to monitor, the focus on the federal level has allowed new COVID-19 safety requirements here in Virginia to slip under the radar for many employers.
On Aug. 26, the Virginia Department of Labor and Industry, or DOLI, met and approved amendments to its safety requirements for employers designed to protect against the spread of COVID-19. The amendments were presented to Gov. Ralph Northam on Aug. 30 and were approved shortly thereafter. The majority of the amendments became effective on Sept. 8.
The amendments to the DOLI standards created rules that were more universal than the ones that DOLI had previously. In the past, workplaces were sorted into categories by risk of COVID-19 spread, ranging from “low” risk to “very high” risk. Now, the standard makes one set of rules that are applicable to all workplaces, along with stricter requirements for workplaces such as healthcare facilities that are asessed as “higher risk.”
The full amended standard is available on DOLI’s website. It contains updates to many aspects of conducting business during the pandemic, including rules about masking, tracking vaccination status and reporting positive COVID-19 cases in the workplace.
“The new Virginia Department of Labor and Industry emergency standards give employers a very clear roadmap of what needs to be done to comply with them and employment lawyers should be ready to help translate them and help employers reconcile what needs to be done,” McLean attorney Elizabeth Payne-Maddalena of Berenzweig Leonard said.
The main updates to the emergency standards include:
Masks: Under the new DOLI standards, all unvaccinated employees are required to wear face masks while indoors, with limited exceptions. Additionally, fully vaccinated employees “in areas of substantial or high community transmission” are also required to wear face coverings. As of Sept. 29, every city and county in Virginia is experiencing a high level of community transmission, according to the Centers for Disease Control and Prevention.
Vaccines: While the DOLI standards do not mandate vaccinations for anyone, Payne-Maddalena wrote on her firm’s website that the new standards “effectively [require] every Virginia employer to obtain their employees’ COVID-19 vaccination statuses,” as there are additional precautions necessary for unvaccinated employees. Employers are permitted to require employees to provide this information, but must treat it as confidential.
Confidentiality: An employee’s diagnosis with COVID-19 is a confidential medical record and cannot be shared without the employee’s consent. However, the standards state that employers must inform any close contacts within 24 hours of the employee’s positive test that they may have been exposed to COVID-19.
Reporting: Employers are required by the standards to “have a method to receive anonymous complaints” of COVID-19 policy violations. Employees who complain are protected from discriminatory or retaliatory action under the standards. Additionally, employers with two or more confirmed COVID-19 cases within a 14-day span must report the “outbreak” to the Virginia Department of Health so the department can conduct an outbreak investigation.
Additional guidance exists for healthcare facilities and “high-risk industries,” which include manufacturing, meat processing, retail and grocery stores and transit, among other industries.
Coupled with Biden’s executive order mandating vaccination across federal agencies and the proposed “vaccination or weekly testing” mandate at large employers, these state-specific rules mean that employment lawyers will need to make sure employers are positioned to implement all the new COVID-19 requirements.
“It’s our job as employment lawyers to say ‘look, this is a roadmap and these are here to give you some clear rules and some clear direction as to what to do,’” Payne-Maddalena said.
Despite the attention Biden’s executive order is getting, it remains unclear how portions of Biden’s vaccinate plan will be implemented. Laura D. Windsor and David C. Burton, employment law attorneys at Williams Mullen, wrote on the firm’s website that employers should be “prepared to weave their compliance with the DOLI Virginia Standard in with the anticipated new [Occupational Safety and Health Administration] Emergency Standard and Executive Orders.”
With the exception of the implementation of required trainings, the vast majority of the updated state requirements are effective immediately. As such, Payne-Maddalena says it is important for employers to review the standards to avoid potential violations.
“There are potential ramifications [for violating the standards],” she said. “There could be investigations, or there could be citations and fines for violations in certain situations.”
While the updates to the standards are lengthy and can seem daunting, Payne-Maddalena said they could help employers who may have had issues in the past with implementing COVID-19 safety requirements.
“It’s … very helpful for employers that they can now tell their employees that these are state requirements and they have to follow them. So, it takes a lot of the pressure in that way off of employer’s shoulders,” Payne-Maddalena said.
She added that despite the standards not implementing vaccine mandates, some employers may see fit to do so within their own firms.
“I can certainly see some employers out there saying that at this point, there is a cost benefit analysis that needs to be made as to whether or not they do want to start putting vaccination requirements in place when it comes to COVID-19,” Payne-Maddalena said.
As for what employment law attorneys should do now, she said attorneys should advise their clients on the importance of documenting what they do to implement the DOLI regulations. That documentation can aid employers who may come under investigation by the Virginia Department of Labor. She also added that due to the timing of these regulations, which were unveiled the same day as the federal announcements, some employers and attorneys may be unaware of what has changed.
“The reality is that the states are continuing to put out new standards,” Payne-Maddalena said. “Don’t sleep on the states. They’re still doing a lot to supplement, bolster or create rules that may cover more employers …than some of the new federal rules that are coming out.”